Allowed

Faizal @ Gattya Karim Shaikh v. the Commissioner of Police, Pune City and Anr.

Bombay HC7 Oct 2021WP/2567/2021

Case brief

AI extract

What is this about?

The High Court quashed the detention order under the MPDA Act passed against the petitioner. The court held that the 18-day delay in processing the detention representation was unreasonable and unsupported by the record. Additionally, the court found that the missing details in the Marathi translation of the injury certificate used as a ground for detention prejudiced the petitioner's right to mak

What did the court decide?

The impugned detention order dated 18th February, 2021 is quashed and set aside, and the petitioner is set at liberty forthwith.

Faizal @ Gattya Karim Shaikh Vs the… — Pension and Retirement Benefits | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.2567 OF 2021

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Faizal @ Gattya Karim Shaikh …Petitioner vs. Commissioner of Police, Pune City and Others ...Respondents

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VISHAL SUBHASH PAREKAR

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Digitally signed by VISHAL SUBHASH PAREKAR Date: 2021.10.07 11:16:48 +0530

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Ms. Jayshree Tripathi, for the Petitioner. Mrs. M.H. Mhatre, APP for the Respondent-State.

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CORAM : S.S. SHINDE & N.J. JAMADAR, JJ.

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JUDGMENT RESERVED ON : 21^st SEPTEMBER,2021 JUDGMENT PRONOUNCED ON: 7^th OCTOBER,2021

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JUDGMENT : (Per N.J.Jamadar, J.)

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Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard fnally.

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The challenge in this petition is to the order dated 18^th February, 2021 passed by the Commissioner of Police, Pune City whereby the petitioner came to be detained under section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Person, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (MPDA Act).

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The background facts necessary for the determination of this

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Vishal Parekar, P.A.

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petition can be stated, in brief, as under:

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a] A proposal was submitted by the Swargate police station to initiate action of preventative detention against the petitioner as the petitioner was found to be a weapon wielding dangerous recidivist. The petitioner persistently indulged in criminal activities to foster terror in the society. Allegedly, the petitioner had become a perpetual danger to the life and properties of the peoples residing in the jurisdiction of Swargate police station. On account of the reign of terror created by the petitioner and his associates, the victims and the witnesses were not coming forward to make complaint against the petitioner due to fear of retaliation.

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b] The detaining authority noted that in the past three offences punishable under Chapter XVI and XVII were registered against the petitioner at Swargate police station, during the period 5^th February, 2018 to 6^th August, 2019. Moreover, the preventative actions initiated against the petitioner had no deterrent effect upon the petitioner. In contrast, the criminal activities of the petitioner continued unabated.

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c] On 8^th November, 2020, the petitioner was arraigned in C.R. No. 1669 of 2020 for the offences punishable under section 186 of Indian Penal Code, 1860; section 7 of Criminal Law Amendment Act and section 25 read with 4 of the Arms Act, 1959 and section 135 read with 37(i) and 142 of the Maharashtra Police Act, 1951. On 30^th

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Vishal Parekar, P.A.

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December, 2020 another crime being C.R. No. 1705 of 2020 came to be registered against the petitioner at Swargate police station for the offences punishable under section 307, 506(ii) and 504 of the Penal Code and section 7 of Criminal Law Amendment Act and section 25 read with 4 of the Arms Act, 1959 and section 135 read with 37(i) and 142 of the Maharashtra Police Act, 1951.

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d] Post confdential inquiry, upon the witnesses being assured that their identity would be protected and they will not be called upon to give evidence in public, the witnesses narrated the atrocities committed by the petitioner. The detaining authority thus considered the statements of two confdential witnesses “A” and “B”. e] On the basis of predicate offences i.e. C.R. Nos. 1669 of 2020 and 1705 of 2020 and the statements of witnesses recorded in camera, the detaining authority recorded the subjective satisfaction that the petitioner was a dangerous person within the meaning of section 2(b-1) of the MPDA Act and in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain the petitioner by invoking the provisions contained in section 3(2) of the MPDA Act. Thus, the impugned order was passed on 18^th February, 2021 and the grounds of detention were served on the petitioner- detunu.

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The petitioner made a representation on 22^nd June, 2021. It

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Vishal Parekar, P.A.

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came to be rejected by the State Government on 14^th July, 2021.

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By virtue of this petition, the petitioner has invoked writ jurisdiction assailing the legality and validity of the detention order on multi-fold grounds. Affdavits-in-reply have been fled by respondent No. 1, the detaining authority, and on behalf of respondent No. 2-State.

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In the backdrop of the aforesaid facts and pleadings, we have heard Ms. Tripathi, learned counsel for the petitioner and Mrs. Mhatre, learned APP for the respondent-State at length. With the assistance of the learned counsels for the parties, we have perused the material on record including the original record on the fle of the detaining authority, tendered for the perusal of the Court by the learned APP.

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To start with, it may be apposite to note that though the detention is challenged on multi-fold grounds, during the course of submissions, Ms. Tripathi restricted the challenge to three grounds namely:

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(i) Delay in consideration of and decision on the representation of the petitioner against the order of detention by the State Government;

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Vishal Parekar, P.A.

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(ii) Discrepancy in the English and vernacular version of injury certifcate, in the relied upon crime, which caused prejudice to the petitioner in making an effective representation;

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(iii) Non supply of the documents on which the detention order is based on the premise that the detaining authority would supply the documents upon being requisitioned by the detunu.

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Delay:-

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There is not much controversy over the facts which bear upon the challenge based on delay in deciding the representation of the petitioner against the order of detention. It is incontestible that the petitioner made the representation on 22^nd June, 2021. The representation was received in the Special Branch of the Home Department on 25^th June, 2021. Ultimately, post processing, the representation came to be rejected on 14^th July, 2021.

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Ms. Tripathi, the learned counsel for the petitioner would urge that the aforesaid delay in deciding the representation of the petitioner is both inordinate and unexplained. It would be imperative to immediately notice, at this juncture, the manner in which the respondent Nos. 1 and 2 professed to meet the ground of delay.

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Vishal Parekar, P.A.

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10. In paragraph No. 2 of the affdavit in reply on behalf of

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respondent No. 2-State, the ground was sought to be met as under:

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With reference to para4(i) of Writ petition, it is submitted that the representation dated 22/06/2021 through the Superintendent, Yerwada Central Prison, Pune vide letter dated 25/06/2021. Thereafter, remarks were called for from the Detaining Authority i.e. Commissioner of Police, Pune on the same day i.e. 25/06/2021 by Special Branch-3B, Desk. The remarks of the detaining authority were received on 13/07/2021 vide letter dated 13/07/2021 via e-mail. The concerned Assistant Section Offcer submitted fle containing remarks of Detaining Authority along with the representation of the detenu to the section offcer on 13/07/2021. The Dy. Secretary endorsed it on 13/07/2021 and forwarded it to the Additional Chief Secretary (Home) on the same day. The Additional Chief Secretary (Home) considered the representation of the detenu and the remarks of the detaining authority and rejected the representation on 14/07/2021 by applying his mind. The rejection of representation was communicated by speed post to the detenu vide letter dated 14/07/2021 through the Registry section of Home Department. Thus, the representation of the detenu was considered by the State Government as expeditiously as possible.

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11. The detaining authority professed to contest the ground of

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delay by asserting as under:

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With reference to grounds 4(i) of the petition it is submitted that the representation of the detenu was received in the offce of Commissioner of Police on 25/06/2021 thereafter the same was forwarded to PCB (Crime), who in turn prepared parawise comments and forwarded to me on 12/07/2021 and after fnalizing the same, forwarded it to the State on 13/07/2021. In the grounds of representation received from detenu through State Government, there was a line at point c on page no.4, which was unreadable. Hence, contracted to the State Government to provide the readable copy, but they also had the same copy of representation. So obtained contact number of detenu’s advocate Smt. Jayashri Tripathi and after frequently contacting them we were able to receive the readable soft copy of representation on 12/07/2021 and then parawise comments were prepared accordingly and after fnalizing the same and forwarded it to the State Government on 13/07/2021. Also between 25/06/2021 to 13/07/2021, there were 6 holidays being Saturday and Sunday. Thus, the parawise comments on the representation of the detenu, have been sent promptly without delay.

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Vishal Parekar, P.A.

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From a conjoint reading of the aforesaid contentions in the affdavits in reply on behalf of respondent Nos. 1 and 2, it becomes explicitly clear that the representation of the detunu was received by the State Government on 25^th June, 2021 and parawise comments were sought from the detaining authority, on the vary day. However, the parawaise comments were received by the State Government on 13^th July, 2021. Whether this delay, in forwarding the parawise comments and the consequent decision on the representation of the petitioner is fatal ?

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Ms. Tripathi, learned counsel for the petitioner, urged with a degree of vehemence that the delay of more than 18 days in forwarding the parawise comments on the part of the detaining authority can, by no stretch of imagination, be said to be reasonable. In the context of the infringement of cherished personal liberty, according to Ms. Tripathi, such delay can hardly be countenanced.

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Per contra, Mrs. Mhatre, learned APP stoutly submitted that the detaining authority has properly accounted for the delay. Laying emphasis on the explanation sought to be offered by the detaining authority to the effect that a line in the representation of the petitioner was illegible (extracted above), Mrs. Mhare would urge that the delay, in the peculiar facts of the case, cannot be attributed

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Vishal Parekar, P.A.

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to the detaining authority. According to Mrs. Mhatre, in the circumstances of the case, it cannot be said that there is no explanation for delay.

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The Constitution guarantees a detunu the right to make a representation against the order of detention and also have the said representation considered by the competent authority with a reasonable dispatch. This fundamental right springs from the constitutional guarranty contained in Article 22(5). The statutory provisions, like section 8 of the MPDA Act, 1981 in the case at hand, supplement the constitutional guarantee by providing that the detaining authority shall afford to the detunu an earliest opportunity of making a representation against the detention order to the appropriate Government. Thus, the constitutional and statutory provisions incorporate a corresponding duty on the authorities, to whom the representation is made, to dispose of the representation at the earliest. If the representation against the order of preventive detention is not considered expeditiously both the constitutional guarantee and the statutory provision would be denuded of their content and effcacy.

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A useful reference in this context can be made to the Constitution Bench judgment in the case of Jaynarayan Sukul Vs.

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Vishal Parekar, P.A.

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State of West Bengal¹ , wherein the principles were culled out in the

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following words :

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“ 18. It is established beyond any measure of doubt-that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any, delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.

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No defnite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to,have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J. who spoke for this Court in the case of Khairul Haque(1) "it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning. Broadly stated, four principles are to be followed in regard to representation of detenu. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It in true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory

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1 (1970) 1 SCC 219.

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Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.”

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(emphasis supplied)

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A proftable reference can also made to the judgment of the Supreme Court in the case of Rama Dhondu Borade vs. V. K. Saraf, Commissioner of Police and another² . In the said case after adverting to the previous pronouncements, the Supreme Court culled out the propositions as under:

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“ 19. The propositions deducible from the various reported decisions of this Court can be stated thus:

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The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfed with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty – the highly cherished right – which is enshrined in Article 21 of the Constitution.

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True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation

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2 (1989) 3 SCC 173.

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should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.”

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In the light of the aforesaid exposition of the legal position, readverting to the facts of the case, it has to be seen whether the explanation sought to be offered by the detaining authority for the delay is worthy of acceptance. An endevour was made to wriggle out of the situation by asserting that a line on page No. 4 of the representation of the detunu was illegible and hence efforts were made to obtain a legible copy, which could only be procured on 12^th July, 2021 and thus there was delay.

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We have perused the copy of the representation of the detunu which is placed on record (Exhibit F to the petition). We do not fnd that the copy of the representation placed on record lends support to the claim of the detaining authority. Neither the line at point (c) on page 4 nor any other part of the representation appears illegible. In the circumstances, in our view, it was incumbent upon the detaining authority to substantiate its claim by placing on record

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Vishal Parekar, P.A.

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relevant material to demonstrate that the copy of the representation, received from the State Government (for the purpose of parawise remarks), was, in fact, illegible. Even otherwise, time lag of 18 days in obtaining a legible copy and submitting parawise remarks cannot be said to be reasonable. We are, thus, not inclined to accede to the submission on behalf of the respondent that the delay has been properly accounted for.

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If the explanation is found to be unworthy of acceptance then it is a case of an undue and unexplained delay in processing and deciding the representation of the petitioner in gross violation of constitutional imperative enshrined in Article 22(5) of the Constitution. On this count alone, the order of detention is required to be quashed and set aside.

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Variance in the English and Vernacular copies of the injury certifcate:-

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Ms. Tripathi, learned counsel for the petitioner invited the attention of the Court to the injury certifcates, purported to in respect of the injured in C.R. No. 1705 of 2020, the relied upon crime, in English (Exhibit G) and Marathi. Attention of the Court was invited to the fact that in the Marathi translation of the injury certifcate neither the name of the hospital, where the injured was

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Vishal Parekar, P.A.

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examined, nor the name of the patient, nor the MLC number and date of examination and other particulars found mention. Upon a bare perusal of the Marathi translation of the injury certifcate (page 41 of the petition), we fnd that the criticism advanced by Ms. Tripathi is well merited. The name of the hospital, MLC number, date and time of examination are conspicuous by their absence in the Marathi translation. What exacerbates the situation is the absence of the name of the person (injured) examined by the Medical Offcer. To put it in other words, the Marathi translation of the injury certifcate gives no indication of the person in respect of whom it has been issued and by whom.

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In the backdrop of the aforesaid discrepancy which, in a sense, robs the certifcate in Marathi the character of an injury certifcate, the endevour made by Mrs. Mhatre to salvage the position by canvasing a submission that no prejudice was caused to the petitioner, does not deserve countenance. It can hardly be disputed that the injury certifcate was one of the relied upon documents for forming the subjective satisfaction by the detaining authority. As the translation of the injury certifcate was not a complete and faithful record of the original injury certifcate in English, the petitioner’s right to make an effective representation can be said to have been seriously impaired.

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Vishal Parekar, P.A.

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A useful reference, in this context, can be made to a Division Bench judgment of this Court, in the case of Sandip Suresh Ghag vs. The Commissioner of Police, Mumbai³ wherein in an identical fact situation, placing reliance upon the judgment of the Supreme Court in the case of Khudiram Das vs. The State of West Bengal and Ors.⁴ and another judgment of this Court in the case of Mohammed Rafque Abdul Majid vs. R.H. Mendonca and Ors.⁵ , this Court had held that the discrepancy in the translation of the injury certifcate could have impaired the right of the detunu to make an effective representation, and, thus, quashed and set aside the detention order.

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The conspectus of the aforesaid consideration is that the detention order deserves to be quashed and set aside on the ground of delay as well as variance in English and Marathi version of the injury certifcate. Consequently, the consideration of the third ground of challenge appears unwarranted. Nonetheless, we deem it appropriate to briefy delve into the third ground as well. It rests on the following statement made in paragraph no. 10 of the grounds of detention.

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I, inform you that the documents supplied herewith have any error or it is illegible or you have any complain regarding these documents, you will have a right to make representation to the Detaining Authority i.e. the Commissioner of Police, Pune city Sadhu Vaswani Road, Camp, Pune through the

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3 2014 ALL MR (Cri) 707.

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4 (1975) 2 SCC 81.

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5 1999 ALL MR (Cri) 1633.

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Vishal Parekar, P.A.

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Superintendent of the Jail, where you are detained and after that the Detaining Authority will serve you the required documents immediately.

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Ms. Tripathi made an earnest endeavour to build a submission on the premise that the detaining authority is enjoined to furnish the detunu the material relied upon, simultaneously with the order of detention. According to Ms. Tripathi, the aforesaid statement runs counter to the settled position that the detaining authority is enjoined to furnish to the detunu, the documents relied on or referred to in the order of detention pari passu the grounds of detention.

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To lend support to this submission, Ms. Tripathi placed a strong reliance on the judgments of the Supreme Court in the cases of M. Ahamedkutty vs. Union of India and Another⁶ and Kamla Kanhaiyalal Khushalani vs. State of Maharashtra⁷ .

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There can be no dispute about the aforesaid proposition. However, the applicability of the aforesaid proposition is in issue. It is not the claim of the petitioner that any of the relied on and referred to documents was not furnished to the petitioner. The right of the petitioner to make an effective representation cannot be said to have been jeopardized by the afore-extracted statement in the

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6 (1990) 2 Supreme Court Cases 1.

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7 AIR 1981 Supreme Court 814.

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Vishal Parekar, P.A.

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grounds of detention which appears to be by way of abundant caution. Thus, we do not fnd any substance in the third ground sought to be urged by Ms. Tripathi.

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